Honnold states: "The Convention differentiates among: (A) facts that a party 'knows' or of which he is 'aware'; (B) facts of which a party 'could not have been unaware'; and (C) facts that a party knew or 'ought to have known.' The facts one 'ought to have known' include those facts that would be disclosed by an investigation or inquiry that the party should make. But an obligation based on facts of which one 'could not have been unaware' does not impose a duty to investigate -- these are the facts that are before the eyes of one who can see. This expression is used at various places in the Conventions slightly to lighten the burden of proving that facts that were before the eyes reached the mind. However, since a tribunal would normally draw this inference, there is little practical difference between the provisions that refer to facts that a party 'knows' and provisions that refer to facts of which a party 'could not have been unaware.'" John O. Honnold, Uniform Law for International Sales, 3rd ed. (Kluwer 1999) 260 [citations omitted].
Degrees of knowledge arise in many CISG contexts. Interpretations in any CISG context can be relevant to your CISG context. For, illustrative helpful analyses go to Christian Rauda and Guilliame Etier's analysis in the context of intellectual property rights and Article 42, and to Ralph Amissah's analysis in the context of missing specifications in international sales and Article 65.
To compare CISG rules on knowledge and behavior with a relevant provision of the Principles of European Contract Law, go to PECL article 1:305 and the comment and notes that accompany this provision.
"could not have been unaware of" is a phrase contained in Article 40. Identical or other references to degrees of knowledge encountered in the CISG are:
Other references to degrees of knowledge
Related phrases [Anticipatory breach (requisite grounds for insecurity)]
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